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Articles 1 - 30 of 22303

Full-Text Articles in Constitutional Law

All Things To All People, Part One, Peter J. Aschenbrenner Dec 2104

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to ...


Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


How Do We Know When Political Societies Change?, Peter Aschenbrenner Jan 2104

How Do We Know When Political Societies Change?, Peter Aschenbrenner

Peter J. Aschenbrenner

Predicates, features, attributes and properties of a system are liable to change. How does the change get marked down? For this purpose what facet of a system should command our attention? Any system worth the name, Our Constitutional Logic argues, is aware of its own standing in civil society. OCL considers the issues raised.


Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry Jun 2018

Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry

ConLawNOW

As social media popularity grows, so too does the constitutional conflicts between the First Amendment’s public forum doctrine and a public official’s social media. More and more claims of viewpoint discrimination are arising from the district courts, stemming from a public official’s use of his or her social media to delete comments or ban users from their official social media pages. Similarly, President Donald Trump’s use of his Twitter has also instigated a law suit against him for viewpoint discrimination under the public forum doctrine. While the Supreme Court has been silent on the issue, its ...


Trump's Forced Patriotism Has No Place In A Free Society, Alan E. Garfield Jun 2018

Trump's Forced Patriotism Has No Place In A Free Society, Alan E. Garfield

Alan E Garfield

No abstract provided.


A View From American Courts: The Year In Indian Law 2017, Grant Christensen Jun 2018

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area ...


Remedies Symposium: Contempt Fines And The Eleventh Amendment, John Sanchez Jun 2018

Remedies Symposium: Contempt Fines And The Eleventh Amendment, John Sanchez

ConLawNOW

The Eleventh Amendment permits plaintiffs to recover prospective relief, for example, injunctive or declaratory relief, against a state. By contrast, the Eleventh Amendment bars recovery of retrospective relief against a state. The classic legal remedy of money damages is not recoverable. There are three types of contempts: civil compensatory and coercive contempt and criminal contempt. Civil compensatory contempt fines and criminal contempt fines are clearly retrospective in nature and so are not recoverable against a state. At the same time, civil coercive contempt fines are prospective and so should be recoverable against a state despite the Eleventh Amendment. Problems arise ...


Surprising Originalism: The Regula Lecture, Lawrence B. Solum Jun 2018

Surprising Originalism: The Regula Lecture, Lawrence B. Solum

ConLawNOW

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks ...


Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz Jun 2018

Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz

Akron Law Review

Approximately a decade ago, the Supreme Court of the United States unexpectedly changed the pleading standard for federal cases with the Twombly and Iqbal decisions. Plausibility pleading replaced the more liberal notice pleading standard endorsed by the Federal Rules of Civil Procedure. Since then, state courts have been faced with a choice to either mirror this change in pleading standards or maintain their commitment to notice pleading. Plausibility pleading has begun to creep into the state court system. Several states have formally changed their pleading standards, while others have declared their commitment to notice pleading. This Article considers the impact ...


Professional-Identity/Professional-Formation/Professionalism Learning Outcomes: What Can We Learn About Assessment From Medical Education, Neil Hamilton Jun 2018

Professional-Identity/Professional-Formation/Professionalism Learning Outcomes: What Can We Learn About Assessment From Medical Education, Neil Hamilton

University of St. Thomas Law Journal

No abstract provided.


What Can The Legal Profession Learn From The Medical Profession About The Next Steps?, Dr. Eric Holmboe, Dr. Robert Englander Jun 2018

What Can The Legal Profession Learn From The Medical Profession About The Next Steps?, Dr. Eric Holmboe, Dr. Robert Englander

University of St. Thomas Law Journal

No abstract provided.


After Ten Years: The Carnegie Report And Contemporary Legal Education, William M. Sullivan Jun 2018

After Ten Years: The Carnegie Report And Contemporary Legal Education, William M. Sullivan

University of St. Thomas Law Journal

No abstract provided.


Building On The Professionalism Foundation Of Best Practices For Legal Education, Paula Schaefer Jun 2018

Building On The Professionalism Foundation Of Best Practices For Legal Education, Paula Schaefer

University of St. Thomas Law Journal

No abstract provided.


The Icing On The Cake: How Background Factors Affect Law Faculty Predictions In Masterpiece Cakeshop, Michael Conklin Jun 2018

The Icing On The Cake: How Background Factors Affect Law Faculty Predictions In Masterpiece Cakeshop, Michael Conklin

ConLawNOW

In this research, I explore law school faculty perceptions and predictions of the highly publicized Masterpiece Cakeshop case. I created a survey to assess how law faculty members’ prediction of the case may be affected by their area of instruction, background in business, religious involvement, political affiliation, same-sex union celebration participation, exposure to the case, and personal desired outcome for the case. I contacted over 800 law school faculty members, inviting them to participate in the research. The ninety-three completed responses provide insight into how law school faculty demographics may be indicators of their Supreme Court case predictions. Furthermore, different ...


The Utility Of Rational Basis Review, Nicholas Walter Jun 2018

The Utility Of Rational Basis Review, Nicholas Walter

Villanova Law Review

No abstract provided.


Foreword, Daniel B. Rodriguez Jun 2018

Foreword, Daniel B. Rodriguez

Northwestern University Law Review

No abstract provided.


Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie Jun 2018

Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie

Northwestern University Law Review

No abstract provided.


Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel Jun 2018

Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel

Northwestern University Law Review

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways ...


Equal Protection Under The Carceral State, Aya Gruber Jun 2018

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety ...


When At Loggerheads With Customary International Law: The Right To Run For Public Office And The Right To Vote, Thompson Chengeta Jun 2018

When At Loggerheads With Customary International Law: The Right To Run For Public Office And The Right To Vote, Thompson Chengeta

Brooklyn Journal of International Law

Many populist demagogues in America and Europe have spoken; and continue to speak; against human rights in their campaigns for political office. This article discusses the factors that have contributed to the current wave of populism; and the nature of the challenges that are presented by populism to democracy; human rights; and constitutionalism from an international human rights law perspective. It also focuses on President Donald Trump; who was voted President of the United States; even after he clearly and publicly indicated his support for torture and his intentions to approve it in the United States. To that end; the ...


Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley Jun 2018

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather ...


Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan P. Feingold, Evelyn R. Carter Jun 2018

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan P. Feingold, Evelyn R. Carter

Northwestern University Law Review

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice William Rehnquist—himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against white applicants.

Chief Justice Rehnquist’s disparate ...


Equal Protection And White Supremacy, Paul Butler Jun 2018

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the ...


The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman Jun 2018

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman

Northwestern University Law Review

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in ...


Church, State And The Lemon Test: The Shortcomings Of The Supreme Court When Deciding Establishment Clause Cases, Jonathan Broida Jun 2018

Church, State And The Lemon Test: The Shortcomings Of The Supreme Court When Deciding Establishment Clause Cases, Jonathan Broida

#History: A Journal of Student Research

This paper argues that the Lemon test is a clear and pragmatic method for ensuring that Justices of the U.S. Supreme Court remain objective when interpreting the Constitution’s Establishment Clause. Critics of the Lemon test have mistakenly suggested that it provides an overly broad interpretation of the Establishment Clause that surpasses its original intent. Analysis of the Supreme Court’s decisions in Lemon v. Kurtzman (1971), Marsh v. Chambers (1983) and Lee v. Weisman (1992) will reveal that blame for the test’s supposed flaws rests on the Justices themselves. Analysis of relevant studies will shed light on ...


Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut Jun 2018

Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut

Northwestern University Law Review

Ideologies are most successful (or most dangerous) when they become common-sense—when they become widely accepted, taken-for-granted truths—because these truths subsequently provide implicit guidelines and expectations about what is moral, legitimate, and necessary in our society. In Regents of University of California v. Bakke, the Court, without a majority opinion, considered and dismissed all but one of several “common-sense” rationales for affirmative action in admissions. While eschewing rationales that focused on addressing discrimination and underrepresentation, the Court found that allowing all students to obtain the educational benefits that flow from diversity was a compelling rationale—essential, even, for a ...


"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost Jun 2018

"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost

Northwestern University Law Review

This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue that ...


"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe Jun 2018

"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe

Michigan Law Review

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and ...


What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky Jun 2018

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky

Northwestern University Law Review

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the ...


Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin Jun 2018

Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin

Northwestern University Law Review

This Essay argues that the battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, upholding patriarchy and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. In turn, such social norms—often enforced by statutes and legal opinions—took root in rhetoric rather than the realities of women’s humanity, experiences, capacities, autonomy, and lived lives. As such, law created legal ...